Ivanov v City of New York

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[*1] Ivanov v City of New York 2008 NY Slip Op 52556(U) [21 Misc 3d 1148(A)] Decided on December 8, 2008 Supreme Court, New York County Mills, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 8, 2008
Supreme Court, New York County

Oleg Ivanov, Plaintiff,

against

City of New York, METROPOLITAN TRANSIT AUTHORITY, NEW YORK CITY TRANSIT, ROYAL CHARTER PROPERTIES, INC., (A New York State Not For Profit Corporation), COLGATE SCAFFOLD & EQUIPMENT CORP., and "JOHN DOE," Said Name Being Fictitious As Presently Unknown and Intended to Present A General Contractor, Defendants.



107322/04

Donna M. Mills, J.



In this personal injury action, defendants Metropolitan Transit Authority (MTA) and it's subsidiary, New York City Transit Authority (Transit Authority; together, MTA/TA), jointly move, pursuant to CPLR 3212, for an order granting a summary judgement dismissal of the complaint against them. Defendant Colgate Scaffold & Equipment Corp. (Colgate) cross-moves pursuant to CPLR 3212, for an order granting a summary judgment dismissal of the complaint against it. Plaintiff and defendant Royal Charter Properties, Inc. (Royal Charter) oppose both the motion and cross motion.

Plaintiff Oleg Ivanov (Ivanov) alleges that on February 12, 2003, at six o'clock in the evening, he was caused to slip and fall and sustain serious injury due to the presence of ice and snow on the sidewalk near the entrance to the A-Train subway station on the northwest corner of Broadway and 169th Street in New York City (the Station). One month later, on or about March 12, 2003, Ivanov filed a timely Notice of Claim against the City, and the MTA/TA. A hearing, pursuant to Sections 50-e and 50-h of the General Municipal Law, was conducted, and thereafter, plaintiff commenced the instant action to recover monetary damages for the severe injuries he allegedly sustained to his right hand when he fell.

Plaintiff's theory of recovery is that each of the above-named defendants contributed to, and is liable for, allowing the sidewalk to become and remain in a snowy, icy, unsafe, and hazardous condition for an excessive and unreasonable period of time, and for failing to take the necessary steps to alleviate the condition which precipitated his fall. Plaintiff named the City as a defendant based on its ownership and control of the sidewalk; the MTA and the Transit Authority were individually named as defendants based on each entity's control of the New York City subway system and their "special use" of the area of the sidewalk where plaintiff fell; Royal [*2]Charter Properties, Inc. (Royal Charter) was named a defendant based on its ownership of the premises located at 601 West 169th Street, New York, NY, which is adjacent to the sidewalk where plaintiff fell; and Colgate was named as a defendant based on its installation of a scaffolding bridge, or "shed," in and about the area where plaintiff fell. The parties pursued discovery and the note of issue was filed on May 2, 2008, triggering the instant motions for summary judgment.

The gravamen of the MTA/TA's motion is that, because the accident did not take place on property under their control, they are not proper parties to this action. In support of their motion, the MTA/TA offers Ivanov's deposition transcript in which he describes the location of his fall, and the deposition transcript of a Transit Authority supervisor, Paul Ruiz (Ruiz), in which he explains policy and procedure. According to Ivanov, he exited the subway at the 168th Street stop, walked up the steps of the subway entrance/exit located at 169th Street, and was in the process of turning to his left and walking around the guard-rail towards the intersection of Broadway and 169th Street, when he suddenly slipped and fell. According to his testimony, he had taken less than five steps from the top of the entrance when he slipped with his right foot and landed about "a couple of feet, one and one half feet" from the guard railing (Ivanov Deposition, at 27). Attached as exhibit E to the MTA/TA notice of motion is a copy of a photograph of the Station entrance containing Ivanov's hand drawn circle purporting to mark the spot where he slipped and fell.

Ruiz, who at all relevant times held the position of Station Supervisor Level 2 for the Transit Authority, testified that his job responsibilities included safety and cleaning at various subway stations to which he was assigned. He acknowledged that at some point during his 18-year tenure as a Station Supervisor Level 2, he supervised the Station but could not recall whether he was assigned to that particular subway station on February 12, 2003. Nevertheless, due to his familiarity with both the Station and the responsibilities of the Transit Authority's "cleaners," Ruiz was able to testify as to the Transit Authority's weather-related practice and procedures which were in effect at the time of plaintiff's accident. Specifically, that it was and is the practice of the Transit Authority to provide its cleaners with snow removal training and with winter operation manuals containing specific instructions for the cleaners, for the supervisors, and for the managers, and that during a snow event, it was standard procedure for the cleaners to shovel snow, chop ice, and lay sand on subway stairways and landings, and at the subway's street level entrances and exits. Ruiz also explained that the cleaners were required to clear snow and ice approximately two to three feet past the top of the Station entrance, but that the cleaners were not required to shovel or clear any portion of the sidewalk which runs along side the guard-railing.

The MTA/TA claims entitlement to a summary dismissal of the complaint because the evidence shows that plaintiff's slip and fall occurred on sidewalk outside the ambit of the MTA/TA's control, therefore, neither the MTA nor the Transit Authority is a proper party to the action.

It is well settled that, as the proponent of a ". . . summary judgment motion [the MTA/TA] must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case" (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). It is also well settled that, because it [*3]effectively denies a non-moving party his or her day in court, summary judgment should not be granted where there is any doubt as to the existence of issues of fact (Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957]). The evidence proffered by the MTA/TA demonstrates that a practice and procedure was in place for maintenance of the subway entrance during a weather-related event, and that Ivanov described how and where his accident occurred and the nature of the injuries he sustained.

Ivanov disputes the MTA/TA's conclusion as to the location of his accident and asserts that the location of his fall was on a portion of the sidewalk which was under the MTA/TA's control because it was within the "special use" portion of the MTA/TA's property, thereby precluding a summary dismissal of the complaint.

The New York courts have consistently held that, although a duty to keep public sidewalks in reasonably safe condition ordinarily rests with the municipality (Weiskopf v City of New York, 5 AD3d 202, 203 [1st Dept 2004], citing D'Ambrosis v City of New York, 55 NY2d 454 [1982]), "where a condition in a sidewalk is so constructed as to accommodate a special use of the adjoining landowner, that special use imposes upon the landowner the stringent duty to the general public of maintaining that area of the sidewalk in a safe condition" (Schectman v Lappin, 161 AD2d 118, 120 - 121 [1st Dept 1990], citing Trustees of Vil. of Canandaigua v Foster, 156 NY 354 [1898]). The courts have also recognized that the installation of a subway entrance can be properly characterized as a special use (Weiskopf v City of New York, 5 AD3d at 203, citing Granville v City of New York, 211 AD2d 195, 197 [1st Dept 1995]). Ivanov argues that because his accident occurred on a portion of the sidewalk which was being specially used by the MTA/TA for its entrance to the A-train, the MTA/TA was under a stringent duty to maintain it in a safe condition, and that its failure to do so either caused or contributed to his accident and resulting injuries. Co-defendant Colgate joins in plaintiff's opposition to the MTA/TA's motion, adding that once the MTA/TA undertook to clear snow and ice in the two-to-three foot area in front of the Station entrance, it was obligated to do so in a non-negligent manner (Espinal v Melville Snow Contrs., 98 NY2d 136, 141 - 142 [2002]).

It is tacitly acknowledged by the parties to the motion that any possible negligence involving the MTA/TA's snow and ice removal are relevant only if Ivanov fell on a portion of the sidewalk under the MTA/TA's supervision and control, and as a result, granting summary judgment in favor of movant MTA/TA requires absolute certainty as to the location of Ivanov's fall. However, as neither Ivanov's testimony, nor the photograph (Notice of Motion exhibit E) containing his broadly-drawn circle purporting to mark the location of his fall, nor any of the other evidence submitted by the parties, eliminates material questions of fact as to precisely where Ivanov fell, the motion must be denied (see Winegrad v New York Univ. Med. Ctr., 64 NY2d at 853). Furthermore, the denial of the MTA/TA's motion renders moot Royal Charter's opposing papers, which speculate that the MTA/TA was responsible for a possible 10% transverse slope, or pitch, in the pavement, and that this pitch may have caused or contributed to the plaintiff's accident (see Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).

Colgate's cross motion also seeks a summary dismissal of Ivanov's complaint. Colgate contends both that it properly installed the scaffold bridge in conformity with relevant codes and regulations and that there is no evidence that the scaffold bridge itself caused or contributed to plaintiff's accident. Ivanov and Royal Charter separately oppose Colgate's motion. Between [*4]them, they dispute Colgate's assertions and argue that: (1) the scaffold bridge was installed with less than the requisite five feet of "walking" space for pedestrian traffic at all points under the bridge, including the area where plaintiff allegedly fell; (2) the roof of the scaffold bridge was improperly constructed, causing water to drip on the sidewalk and create an icy situation by the Station entrance; and (3) there was inadequate lighting underneath the scaffold bridge which reduced plaintiff's ability to exit the Station safely.

Addressing first the issue of lighting, it is Ivanov's contention that Colgate's failure to provide adequate lighting underneath the scaffold bridge prevented him from seeing and avoiding the subject patch of ice, and that this failure violated Administrative Code of the City of New York § 27 - 1021 (b) (10). At his deposition, Ivanov testified that there were no lights illuminating the street or the sidewalk in the area where he exited the Station, that the closest light was at least 100 feet ahead of him, and that he did not see either snow or ice before his fall.

Colgate does not dispute plaintiff's assertion as to lack of adequate lighting, but rather, Colgate denies responsibility for lighting-related problems and identifies Royal Charter as the party responsible for lighting issues. It is undisputed that, pursuant to written contract dated February 22, 2002, Colgate was hired by non-party Rich McDowell of non-party Grenadier Corp. to install the subject scaffold bridge for overhead protection because of work being performed to the outside of the building at 601 West 169th Street (the Building), and that as of February 5, 2003, Royal Charter replaced Grenadier as the party with whom Colgate had the written contract.

Colgate's company president Peter O'Farrell (O'Farrell), was produced for deposition with respect to this cause of action. According to O'Farrell, Colgate installed the steel framework for the scaffold bridge and the lumber decking on top, and then used an electrical subcontractor to install, per code, incandescent lighting on the underside of the scaffold bridge, in the form of 200 watt light bulbs. He testified that the electrical subcontractor installed a light every 15 feet with an electrical feed coming from the Building, and that the scaffold bridge's location by the Station did not require any additional or special lighting to be provided. O'Farrell further testified that Colgate views itself as an equipment rental company, and that it routinely includes language in its contracts to the effect that it is its customer's responsibility to handle ordinary maintenance of the scaffold bridge equipment and lighting:

[i]t is the customer's responsibility to inspect the installation upon completion. If no written notification is received by Colgate Scaffolding to the contrary within three (3) days of completion of erection, the installation shall be deemed acceptable to the customer . . . Colgate Scaffolding will not be responsible for maintenance of the lights once they have been installed

(Notice of Cross Motion, Exhibit J, p.2, ¶ 3). O'Farrell explained that, when necessary, the light bulbs would get changed by building "supers" or by the contractors doing the work which necessitated the use of the scaffold bridge, because it is the supers and the contractors who maintain a presence at the location, not Colgate. Inasmuch as maintaining working light bulbs under the scaffold bridge was, by contractual agreement, Royal Charter's responsibility, Colgate has made a prima facie showing of entitlement of judgment as a matter of law (Winegrad v New York Univ. Med. Ctr. , 64 NY2d at 853). Accordingly, the burden shifts to the opponents to Colgate's cross motion to submit evidentiary facts to rebut the prima face showing that Colgate was not negligent, and to show that a triable issue of fact exists with respect to Colgate 's [*5]installation of the subject bridge (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986])

To this end, Ivanov and Royal Charter offer the sworn affidavit of licensed professional engineer Michael Kravitz, P.E. (Kravitz) which was prepared and submitted on behalf of Royal Charter. Acknowledging that he did not have an opportunity to personally see Colgate' s scaffold bridge in position when he performed his June 16, 2008 on-site visit, Kravitz stated that "[t]he area of the incident appeared to be in the same condition as depicted in the photographs except that the scaffolding was removed and the concrete sidewalk had been replaced" (Kravitz Aff., ¶ 6). Basing his professional opinion on his visit, his review of the photographs, and on his professional knowledge and experience, Kravitz stated that Colgate's construction of the scaffold bridge violated both The Official Compilation of the Rules of the City of New York, at 34 RCNY § 2-02, and the New York City Building Code, at § 27-1021, in that one of the scaffold bridge columns was placed "approximately 27 inches from the post of the subway exit, well below the City's requirements for pedestrian passageways" and that "[t]his narrow 27 inch passageway forced plaintiff to make a dangerous turn as he exited the subway. Since a wider passageway may have made the situation less dangerous, there is a question of fact as to whether defendant Colgate's violation of statute and code contributed to plaintiff's fall" (Aff. in Opp., ¶¶ 38, 40). Kravitz also concluded that Colgate violated good and accepted engineering practice by constructing the scaffold bridge in such a manner as to cause storm runoff to collect on the scaffolding and then to drip onto the sidewalk, creating an icy and hazardous situation in an area frequented by pedestrians.

In addition to arguing that because Kravitz never observed the scaffold bridge in place, his affidavit is fatally flawed, Colgate relies on O'Farrell's sworn written affidavit in which O'Farrell directly refutes key aspects of Kravitz's affidavit. In addition to his statement that the scaffold bridge was constructed according to code, that it was installed to grade, meaning along the same slope as the sidewalk, and that no provisions are included in the construction of a scaffold bridge to address precipitation-related runoff, O'Farrell offered his bridge notes in sworn affidavit form. According to his affidavit, on Monday, June 17, 2002, O'Farrell observed the installation of the scaffold bridge, followed which, he inspected it for code compliance. His inspection yielded, among other things, the following results:

The bridge measured 310 total feet in length and was 16 feet wide. The bride was constructed such that at least 5 feet of walking space was maintained at all points under the bridge. In addition, the roof of the bridge was constructed of corrugated tin pitch at an angle to allow rainwater to drain at or about the curb. The bridge was constructed in full compliance with The Official Compilation of the Rules of The City of New York and the New York City Building Code

(O'Farrell Affidavit, ¶¶ 3 - 5).

The mere fact that the scaffold bridge was no longer in place and the sidewalk had been replaced by the time of Kravitz's visit, does not necessarily render his professional opinion speculative for evidentiary purposes (see Cuevas v City of New York, 32 AD3d 372, 374 [1st Dept 2006]). More problematic, however, is Kravitz's statement that his professional opinion is based upon an assumption he made as to the path plaintiff took when he reached the top of the subway stairs. According to Kravitz, "Mr. Ivanov was assumed to walk between the subway newel post [*6]and the sidewalk shed column as it would have given him the best route and for his right foot to slip out toward the curb" (Kravitz Aff. ¶ 3). Yet, neither Ivanov's 50-h hearing transcript, nor Ivanov's deposition transcript, nor any other document on submission, contains language confirming this assumed path.

Moreover, even assuming the existence of a statutory or code violation in Colgate's installation of the scaffold bridge columns, the record is devoid of evidence that the purported misplacement of a column caused, or in anyway contributed to, plaintiff's accident. Again, none of the competent evidence, neither his 50-h nor his deposition transcript, contains testimony which even tangentially relates Ivanov's accident to the amount of space provided for the passage of pedestrians under the scaffold bridge. Finally, when specifically asked if, other than the lack of sufficient lighting, he was "claiming that the scaffolding [bridge] had anything to do with [his] accident?" Ivanov responded "no" (Ivanov Deposition, at 99 - 100).

The opponents to the cross motion have failed to submit evidentiary proof establishing that one or more material questions of fact exist precluding summary judgment in Colgate's favor.

Accordingly, it is

ORDERED that the motion for summary judgment by defendants Metropolitan Transit Authority and New York City Transit Authority is denied in all respects; and it is further

ORDERED that the cross motion for summary judgment by defendant Colgate Scaffold & Equipment Corp. is granted, and the complaint and all cross claims are severed and dismissed as against Colgate Scaffold & Equipment Corp., and the Clerk is directed to enter judgment in favor of this defendant with costs and disbursements as taxed by the Clerk; and it is further

ORDERED that the remainder of the action shall continue.

Dated: December 8, 2008

ENTER:

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JSC